The Supreme Court heard oral argument today in the case challenging President Trump’s decision to shut down the DACA program, established by President Obama, that allows undocumented young adults who came to the United States as children to apply for protection from deportation. Obama had said that, because he is not a king, he lacked the power to institute this kind of program. Frustrated, though, by Congress’s inactivity, Obama eventually played the part of king and established DACA.
The Trump administration reversed Obama’s program after Attorney General Sessions concluded, correctly, that it was “effectuated . . . without proper statutory authority.” The legality of the administration’s decision seems obvious. There should be no legal problem when an administration shuts down a program adopted its predecessor that unconstitutionally expands presidential power.
The real question, though, is not whether President Trump acted lawfully. The real question is whether the four left-liberal Justices will be joined by a fifth Justice in asserting that Trump violated the law.
Based on the reports of the oral argument I’ve seen, it doesn’t seem probable that there will be a fifth vote against the president’s action. Politico’s Josh Gerstein and Bianca Quiltantan report that there was “little traction” for reversing the administration on DACA “with the Court’s conservative Justices.” NBC’s Pete Williams says the “Supreme Court appears inclined to let Trump end DACA program.”
By contrast, Amy Howe of Scotusblog reports that the Justices were “hard to read” during oral argument. However, nothing in her analysis points to any inclination among the five non-liberal Justices to rule against the administration in this matter.
Similarly, Ariane de Vogue and Priscilla Alvarez of CNN claim that the Justices “struggle[d]” with the case. Yet, the text of their report suggests that four conservative Justices — Roberts, Alito, Gorsuch, and Kavanaugh — aren’t struggling much. The fifth conservative, Justice Thomas, apparently asked no questions (he almost never does). However, I don’t think anyone expects him to side with the four liberals in this case.
Based on the recent past, it’s reasonable to speculate that Chief Justice Roberts is the most likely candidate to join the four libs. However, he gave no indication that he is inclined to do so. CNN found his questioning sympathetic to the administration.
Politico’s report bears this out:
[T]here wasn’t much from Roberts Tuesday to give hope to DACA supporters. At one point, he argued that Obama’s policy was unprecedented, if not illegal, because the number of people affected was much larger than similar actions by past administrations.
“That history is not close to the number of people covered by DACA,” Roberts said.
While DACA recipients have painted Trump’s revocation of the policy as opening them to deportation, Roberts emphasized that the case was not about the threat of deportation, but about eligibility for benefits like permission to work legally in the U.S.
“The whole thing was about work authorization and various other benefits,” Roberts said. “Both administrations have said they are not going to deport the people.”
Moreover, Roberts was among the several Justices who suggested there was little point in sending the decision to end DACA back to the administration to clean up alleged technical deficiencies, given the Trump administration’s commitment to ending the program.
The usual caveat applies — one can’t always tell from the questions and comments of a judge how he or she will vote. The caveat applies in spades to Chief Justice Roberts.
However, I think it’s fair to say, as NBC News does, that the Supreme Court seems inclined to allow Trump to end the DACA program.